Apple Inc. v. Samsung Electronics Co. Ltd. et al

Filing 589

CLAIM CONSTRUCTION STATEMENT Samsung's Opening Claim Construction Brief (Unredacted Version) filed by Samsung Electronics Co. Ltd.. (Attachments: #1 Exhibit Briggs Declaration and Ex. A-F in support of Samsung's Opening Claim Construction Brief, #2 Exhibit Briggs Declaration Ex. G-I, #3 Declaration Wesel Declaration in Support of Samsung's Proposed Claim Construction for US Patent No. 7,200,792, #4 Declaration Cole Declaration in Support of Samsung's Proposed Claim Construction for US Patent No. 7,698,711, #5 Exhibit Cole Decl. Ex. 1, #6 Exhibit Cole Decl. Ex. 2, #7 Exhibit Cole Decl. Ex. 3, #8 Exhibit Cole Decl. Ex. 4, #9 Exhibit Cole Decl. Ex. 5, #10 Exhibit Cole Decl. Ex. 6, #11 Exhibit Cole Decl. Ex. 7A-7G, #12 Exhibit Cole Decl. Ex. 8, #13 Exhibit Cole Decl. Ex. 9A-9C, #14 Exhibit Cole Decl. Ex. 10, #15 Exhibit Cole Decl. Ex. 11, #16 Exhibit Cole Decl. Ex. 12)(Maroulis, Victoria) (Filed on 1/6/2012)

Apple v Samsung – Declaration

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APPLE INC., a California corporation,
Plaintiff,
vs.

CASE NO. 11-cv-01846-LHK

SAMSUNG ELECTRONICS CO., LTD., a
Korean business entity; SAMSUNG
ELECTRONICS AMERICA, INC., a New
York corporation; SAMSUNG
TELECOMMUNICATIONS AMERICA,
LLC, a Delaware limited liability company,
Defendants.

DECLARATION OF JOE TIPTON COLE IN SUPPORT OF SAMSUNG’S
PROPOSED CLAIM CONSTRUCTION FOR U.S. PATENT NO. 7,698,711

I.

ENGAGEMENT AND QUALIFICATIONS
A.

1.

Engagement

I, Joe Tipton Cole, have been engaged by Samsung Electronics Co., Ltd.,

Samsung Electronics America, Inc., Samsung Telecommunications America,
LLC, (collectively “Samsung”) in connection with the captioned lawsuit to provide
my analyses and opinions regarding the interpretation of the term “applet” as
used in the claims of U.S. Patent No. 7,698,711 (“the ‘711 patent”).
2.

The statements made herein are based on my own knowledge and

opinion. I can and will testify to these matters if called at trial.

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B.
3.

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Qualifications

I have been actively engaged as a computer software professional since

1977. I am currently the owner and proprietor of Tipton Cole + Co., a
professional practice of technical consulting services. The focus of the practice
is litigation support for cases involving computer software and associated
devices. From 1983-2008, I was President of Tipton Cole + Co., Inc., a software
development and consulting company. That company prepared commercial
database applications and provided both technical and management consulting
services to large and small businesses. From 1977-1983, I was the co-owner of
software development and consulting business, Cole & Van Sickle, which we
founded in 1977.
4.

I began studying computer science in 1968 as a student in National

Science Foundation mathematics programs at Southern Methodist University and
Texas A&M University. I continued those studies at Washington University in St.
Louis and at the University of Texas at Austin, with a focus in the field of Artificial
Intelligence.
5.

I received a B.A. in Mathematics from the University of Texas in 1974, an

M.A. in Computer Science from the University of Texas in 1976, and a Juris
Doctorate from the University of Texas in 1978. I am currently licensed by the
State Bar of Texas. My license status is “inactive.”
6.

I have taught a Data Structure course at the University of Texas and a

senior-level Database Management Systems Course at St. Edwards University in
Austin.

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7.

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I am being compensated for my time spent on the case at a rate of

$675/hour.
8.

My current CV is attached to this report as Exhibit 1.
C.

9.

Person of Ordinary Skill in the Art

I understand that to determine the ordinary and customary meaning of a

claim term, one looks to the meaning that a person of ordinary skill in the art
would have given the term at the time of the invention, which in this case is at
least as early as August 30, 2005. Based on my experiences and the materials I
have reviewed, it is my opinion that one of ordinary skill in the field of the ‘711
patent is a person in the field of computer science/engineering with either a
Bachelor’s degree and several years of relevant experience, or a Master’s
degree with less relevant experience, or a person with equivalent industry
experience.
D.
10.

Background

Plaintiff and Defendant propose different constructions for the term applet

used in claims 1, 9 and 17 of the ‘711 patent. The parties’ constructions of the
term applet are as follows:
Samsung’s Proposed Construction

Apple’s Proposed Construction

A small application designed to run
within another program.

11.

An operating system-independent
computer program that runs within an
application module.

The parties agree that an applet runs “within” another piece of software

(“another program” or “an application module,” respectively.) Given this
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agreement, I focus my analysis on the question whether the term applet as used
in the patent necessarily includes the limitation that the applet is “operating
system-independent.”
E.

Exhibits

12.

Exhibit 1 is my CV.

13.

Exhibit 2 is U.S. Patent No. 7,123,945, issued to Takeshi Kokubo, titled

“Task Display Switching Method, Portable Apparatus and Portable
Communications Apparatus."
14.

Exhibit 3 contains relevant portions of the deposition transcript (rough) of

Mr. Moon Sang Jeong, taken on November 17, 2011.
15.

Exhibit 4 is a page from Mr. Jeong's notes with bates label

SAMNDCA00139800.
16.

Exhibit 5 contains relevant portions of Wiley's Electrical and Electronics

Engineering Dictionary (2004).
17.

Exhibit 6 is a copy of the complete web page from

http://www.memidex.com/applet as of 2011 Nov 24, discussing the use of applet
in various contexts.
18.

Exhibit 7 is a compilation of documents that discuss the use of applets in

the Microsoft Control Panel tools and Microsoft environment more generally.
These documents include the following web pages:
http://www.techimo.com/forum/applications-operating-systems/123490-windows9x-question-about-32-bit-16-bit-software-installation.html (1998);
http://www.codeproject.com/KB/winsdk/cjbcontrolpanelapplet.aspx (2000);

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http://forums.windrivers.com/archive/index.php/t-16754.html (2001);
http://www.pctools.com/guides/registry/detail/522/ (2002);
http://www.realgeek.com/forums/control-panel-applet-missing-299659.html
(2003); http://www.geekgirls.com/windowsxp_controlpanel.htm (2004);
http://www.freewarefiles.com/Microsoft-Color-Control-PanelApplet_program_16303.html (2005).
19.

Exhibit 8 is a compilation of documents that discuss the use of applets in

the context of AppleScript; a system of scripting language for the Macintosh OS
X operating system. These documents include the following web pages:
http://managingosx.wordpress.com/2006/03/23/universal-applescript-applets/
(2006); http://fm.geckotribe.com/applescript/savenonpopup.php3 (2001);
http://www.applefritter.com/node/15241 (2006);
http://macscripter.net/viewtopic.php?id=24382 (2002); and
http://www.mactipsandtricks.com/articles/BAS1.lasso (2004).
20.

Exhibit 9 is a compilation of documents that discuss the use of applets in

the Linux environment. These documents include the following web pages:
http://linux.softpedia.com/get/Desktop-Environment/Tools/GetCodecs-5182.shtml
(2005);http://www.pygtk.org/articles/applets_arturogf/ (2004);
http://ubuntuforums.org/showthread.php?t=909404.
21.

Exhibit 10 is a webpage that discuss the use of applets in the Ruby

programming language for Windows-specific environments. The webpage can
be found at: http://www.justskins.com/forums/anyone-using-registerclass-from33437.html.

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Exhibit 11 is a webpage that discuss the use of applets in the Flash

programming language. The webpage can be found at:
http://scripts.top4download.com/stock-applets-script/efiow.html.
23.

Exhibit 12 is a webpage discussing the ability of programmers to

overcome the default restrictions in Java, thereby gaining access to the operating
system of that particular machine. The webpage can be found at: http://wwwpersonal.umich.edu/~lsiden/tutorials/signed-applet/signed-applet.html. (The
copyright date on the document at the “jarsigner” link is 1994-2004.)
II.

THE MEANING OF “APPLET”
A.

24.

Intrinsic Evidence

There is limited discussion in both the specification and claims of the ‘711

patent, as well as the prosecution history, as to the definition of the term “applet.”
25.

While the discussion of “applet” is limited, Samsung’s proposed claim

construction is fully supported by the intrinsic evidence. The intrinsic evidence
makes clear that the term “applet” is not limited to an “operating systemindependent computer program that runs within an application module” as
proposed by Apple and its expert, Dr. Givargis. Apple’s reliance on the use of
the term “applet” in the Java language is wholly unsupported by the ‘711 patent
claim language and specification, as well as the entirety of the ‘711 patent’s
prosecution history.
1.
26.

The ‘711 Patent Disclosure

The ‘711 patent describes an “apparatus and method capable of

performing multiple tasks in a portable terminal…in which the menu functions of
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the portable terminal can be implemented while continuing to play the music.”
(‘711 Patent Abstract).
27.

The apparatus and method of the ‘711 patent were invented to deal with

the problem that portable terminals had with allowing users to multi-task while
listening to music in the background. As embodied in the prior art, users could
not “simultaneously work on several menus of the portable terminal while
listening to the music using the conventional MP3 music function.” (‘711 Patent at
Col. 1:39-41). The ‘711 patent solved this problem by disclosing an apparatus
and method by which “menu functions of the portable terminal can be
implemented while continuing to play a music file.” (‘711 Patent at Col. 1:58-61).
28.

When discussing the types of multi-tasking the ‘711 invention could

perform while listening to an MP3 file, the specification lists, as examples, many
different types of applications, including messaging, phone book, scheduling,
games, and picture searching. (‘711 Patent at Col. 4:43-49). Additionally,
dependent claims 7-8 and 15-16 specifically mention utilizing messaging and
phone-book functions while continuing to play MP3 files in the background. (‘711
Patent at Claims 7-8 and 15-16).
29.

The wide variety of applications that can be implemented while playing an

MP3 file contradicts Apple’s narrow construction of applet as only referring to a
Java applet being solely utilized in a web browser environment. There is no
evidence that any of the disclosed functionalities in the ‘711 patent use the Java
programming language or have any relation to a web browser.

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2.
30.

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Specification and Claims

The term “applet” appears in the three independent claims of the ‘711

patent, claims 1, 9 and 17. In all three claims, “applet” appears in the same
context, namely:
“a music background play object, wherein the music background play
object includes an application module including at least one applet.”
31.

As used in claims 1, 9 and 17, the term “applet” is never once qualified

with the notion that the “applet” is Java based, nor that the “applet” is operating
system independent.
32.

In fact, the only instance where the term “applet” is discussed in the

specification also fails to qualify the term with any requirement that the “applet”
be written in Java or be operating system independent. This portion of the
specification states:
“FIG.1 is a block diagram of a portable terminal according to an exemplary
embodiment of the present invention, in which an MP3 music control
processor is not included. Application modules of the portable terminal
include at least one applet and each of the application modules, that is
each menu of the portable terminal, independently performs multi-tasking.”
(‘711 patent at Col. 3:8-14)
Neither the language quoted here, nor FIG. 1 of the ‘711 patent, even mention
much less require the “applet” to be operating system independent as Apple and
Dr. Givargis propose.

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3.
33.

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File History

The claim language that includes the term “applet” was added at the

request of the patent examiner. As detailed in an interview summary, the
“[e]xaminer suggested to further include the definition ‘a music background play
object’ as ‘wherein the music background play objects including an application
module includes at least one applet’ as argued during the interview to distinct
[sic] from the icon as taught by KOKUBO.” (U.S. Patent Application No.
11/778,466, Examiner’s Interview Summary of December 16, 2009).
34.

As a result of this request, the claims were amended to include the

language suggest by the patent examiner. The language added to claims 1, 9
and 17 was “wherein the music background play object includes an application
module including at least one applet.”(U.S. Patent Application No. 11/778,466,
Applicant’s December 8, 2009 Arguments/Remarks Made in an Amendment at
pp. 2-4).
35.

While Dr. Givargis is correct when it states that there was no definition of

applet proposed either by the examiner or the Applicant, Dr. Givargis fails to
analyze the one piece of prior art that this amendment was aimed at
distinguishing. This piece of prior art is U.S. Patent No. 7,123,945, titled “Task
Display Switching Method, Portable Apparatus and Portable Communications
Apparatus (the “Kokubo patent” attached hereto as Exhibit 2). Generally
speaking, the Kokubo patent was aimed at allowing the “processing of a plurality
of tasks in parallel and of displaying a plurality of display regions for displaying
data.” (Kokubo patent at Abstract). The Kokubo patent does not deal with the
use of Java or applets in order to achieve multi-tasking.
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36.

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The Kokubo patent discloses an apparatus and method that solved the

problem of multi-tasking by using icons to switch between applications faster
than simply closing out of an application to perform another function. (See Figs.
3-9, Col. 2:29-62). The icons would also correspond to a “predetermined state”
of the corresponding application, such as a “suspended or stopped state,” which
would further increase the speed of switching between operations. (Id. At Col.
3:33-41).
37.

The Kokubo patent did not disclose, or even discuss, operating system

independence, or dependence, of any of the applications or programs run with
the disclosed multi-tasking method. Given that Kokubo is silent on the use of
operating system dependent or operating system independent, it is not
reasonable to argue that the addition of applet to the claims of the ‘711 patent
somehow requires an “applet” as used in the claims of the ‘711 patent to be an
operating system independent piece of software.
4.
38.

Conclusion

Given the limited amount of intrinsic evidence to construe the term applet,

I have examined extrinsic evidence to determine the general meaning of applet
at the time of the invention. In my opinion, the proper construction of the term
applet in the context of the ’711 is “a small application designed to run within
another program.” “Applet,” as used in the ‘711 patent, should not include the
limitation “operating system-independent.” My opinion is based on the extrinsic
evidence that I present below and is consistent with the intrinsic evidence. This
evidence consists of various uses of the term “applet” during the time period

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leading up to the ‘711 patent’s priority date of August 30, 2005, as well as the
testimony and contemporaneous documentation of the sole inventor of the ‘711
patent, Mr. Moon-Sang Jeong. This evidence shows that to one of ordinary skill
in the art the term applet was not limited to “operating system-independent”
programs.
B.
39.

Extrinsic Evidence

Before discussing the evidence that one of ordinary skill in the art would

not consider all uses of the term “applet” to be operating system independent, the
testimony of Mr. Jeong and contemporaneous documents authored by Mr. Jeong
provides context to the term “applet” as used in the ‘711 patent. At his
deposition, Mr. Jeong was asked to give his definition of “applet” as he
understood it in 2005. Mr. Jeong responded that his “understanding as to an
applet was in reference to such things as would comprise an application, such
as: smaller functionalities, smaller classes of things, even a smaller unit of an
application or of applications.” (11/17/2011 Deposition of Moon-Sang Jeong,
Rough Tr. at 25:2-13, attached hereto as Exhibit 3).
40.

Mr. Jeong testified that the term “applet” can be used in both an operating

system independent fashion, as well as an operating system dependent fashion.
(Exhibit 3 at 25:14-25). Although “applet” could be used in both ways, Mr. Jeong
testified that he was using “applet” in the operating dependent fashion due to his
development of the Qualcomm platform that only use Qualcomm chipsets.
(Exhibit 3 at 29:10-30:22). When “applet” was used in this context, the term

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“applet” “was something that applied with respect to the Qualcomm platform
only.” Id.
41.

Mr. Jeong’s testimony is also consistent with the documentation that he

created during the development process of the invention that would eventually
issue as the ‘711 patent. Mr. Jeong’s development notes contain an entire page
dedicated to identifying applets and interfaces, none of which are identified as
being Java applets or operating system independent. (See SAMNDCA00139800,
attached hereto as Exhibit 4 ). The identified applets include functions such as
“Clockdesign,” “ScheduleApp,” “Mediaplayer,” “QCamcorder,” and many others
that neither reference Java nor being used in an operating system independent
environment.
42.

Mr. Jeong's contemporaneous documentation supports his testimony, as

does the large quantity of extrinsic evidence which shows that “applet” does not
require operating system independence.
43.

Wiley’s Electrical and Electronics Engineering Dictionary (2004) defined

“applet” as a “[a] small application designed to run within another program.” This
definition comports with Samsung’s definition of applet and makes no mention of
the requirement that applet be an operating system independent computer
program.
44.

In addition to this dictionary definition, Apple and Dr. Givargis cite another

dictionary that supports Samsung’s construction of the term applet. Dr. Givargis
cites the McGraw-Hill Dictionary of Scientific and Technical Terms (6th Ed.,
2003) at page 124, which defines applet as “a small program, typically written in

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Java.” (Givargis Decl. at ¶ 42). Even though this definition refers to Java, it does
not require that the applet actually be written in Java, or that the applet be
operating system independent. Given Apple’s and Dr. Givargis’ absolute position
that an applet must be operating system independent, Apple’s and Dr. Givargis’
cited definition directly contradicts such an absolute position, and supports
Samsung’s construction that applet does not require operating system
independence.
45.

Exhibit 6 illustrates the challenge of presenting a precise, authoritative

definition of the term applet. Various of the dictionary sources shown in the
“Definition references” section of that page limit the term applet with the
qualification: 1) small; 2) simple; 3) automatically copied; 4) run from a webpage;
and 5) usually portable between operating systems. Four of the nine include a
notion of inclusion similar to the “application module including at least one applet”
phrase that appears in the claims, the specification and the file history of the ‘711
patent. As a point of interest, however, none of the definitions limits the term
applet to the realm of Java applets.
46.

The “Etymological references” section of Exhibit 6 offers to definitive

dates, 1990 and 1995, as the date of first use. The 1990 date given by MerriamWebster matches the date attributed to the Oxford English Dictionary at the
Wikipedia page http://en.wikipedia.org/wiki/Applet. The date has some
significance because Java was unknown in 1990, so that the term applet would
have a meaning independent of the phrase Java applet.

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1.
47.

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As Used in the ‘711 Patent, Applet Does Not Refer to a
Java Applet

Dr. Givargis focuses on definitions of applet that are somehow related to

the Java programming language. The only evidence Dr. Givargis presenst to
support this logical leap is that “[l]eading up to 2005, mobile phone
manufacturers increasingly produced Java-enabled devices.” (Givargis Decl. at ¶
22). Under Dr. Givargis' analysis, the mere fact that some mobile phones were
Java-enabled at the time of the invention would require that any mention of
applet in a patent for mobile devices must refer to a Java applet. The logical
fallacy of this conclusion is obvious.
48.

Neither the patent nor the file history invoke a Java-based environment as

a necessary element of the ‘711 patent. In fact, the word “java” never occurs in
the patent itself.
49.

Those of skill in the art would not make this logical leap. For those of skill

in the art, there is a more expansive view of the term applet, one that
encompasses more than just Java applets.
50.

In addition to Java applets, applet was used to refer many different

programming languages and functionalities. Some of these non-Java related
references to an applet include:
a.
51.

Desktop Applets

Use of the term applet to describe what Microsoft sometimes calls “Control

Panel Tools” was current for some time before and after the filing of the ‘711
patent. (See Exhibit 7)

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b.
52.

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AppleScript Applet

AppleScript is a system scripting language used for the Macintosh OS X

operating system. AppleScript uses applets in its programming language. (See
Exhibit 8)
c.
53.

Linux Applets

The Linux operating system also used the term applet extensively in its

environment.
54.

Applet is a term that is also used in the Python programming language for

the Linux operating system. An example of one such applet is the GetCodecs
applet (See Exhibit 9) Another example of Python applets is a collection of
Gnome (Linux-specific) applets written in Python. (Id.)
55.

Not only did Linux use the term applet, there were uses of applet in

reference to specific versions of Linux, such as Ubuntu. (Id.)
d.
56.

Ruby Applet

In addition to the earlier referenced Microsoft desktop applets, another

example of a Windows-specific applet is an applet written in Ruby for the
Windows operating system. (See Exhibit 10)
e.
57.

Additional Applets

Additional uses of the term applet can be found in the Visual Basic

programming language as well as Flash. (See Exhibit 11).
58.

It is my opinion that given the wide ranging use of the term applet in the

field of the ‘711 invention, one of skill in the art would not limit the term applet to
refer solely to a Java applet. Add to this simple fact, the silence of the ‘711
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patent and file history as to any use of Java, it is not correct to equate the term
applet to the more restrictive Java applet.
2.
59.

Applet Does Not Have to be Operating System
Independent

As discussed in the previous section, the term “applet,” unadorned with

any qualifiers, is subject to many “definitions.” Taken in isolation the vast
majority of the definitions do not address the issue of operating system
dependence or independence.
60.

Dr. Givargis cites no evidence from the intrinsic record that would support

limiting the term applet to require operating system independence. Dr. Givargis
quotes extensively from the file history of the ‘711 patent and asserts that the
many passages support his opinion, but he never explains why that is so. In my
opinion, taken individually, as a whole, or in any combination, the passages on
which Dr. Givargis relies offer no support for his conclusion. In the context of the
‘711 patent, because these references are utterly silent on the question of
operating system independence, they contradict Dr. Givargis’ stated opinion.
61.

Apple’s own extrinsic evidence also contradicts the conclusion that as

used in the ‘711 patent, applet means an “operating system independent
computer program.” Dr. Givargis places a large emphasis on the Java’s
Developer’s Resource (1997) by Eliotte Harold (“the Harold reference”). While
the selection of a reference that deals specifically with Java is inherently flawed
when there is no indication that applet as used in the ‘711 patent refers to a Java
specific applet, even this Java specific handbook recognizes that an applet can
be operating system dependent. According to Apple, Harold explains “how
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applets can be independent of the host platform.” (Givargis Decl. at ¶ 45). As
stated, this conclusion falls short of Apple’s proposed construction in which
applets must be independent of the host platform.
62.

Furthermore, the Harold excerpt does not say that Java applets running

within “Web browsers” are operating system independent. Neither does this
excerpt support the conclusions that the web browsers are operating system
independent or that web browsers, even if operating system independent,
impose that condition on the applets that execute within them. Apple and Dr.
Givargis fail to take any possibilities into account.
63.

While Java applets may in practice be operating system independent, it

takes particular skill and commitment to do so. The Java sandbox in which Java
applets run protects the software author from many actions that deal directly with
the host operating system – but operating system independence is not automatic.
For example, the programmer must refrain from taking advantage of actions or
data that are available only on one operating system. Some actions or data may
be available on multiple operating systems but under different names or with
different details of definition such as signatures of system procedures or data
types of system variable or system constants.
64.

Additionally not all Java applets are necessarily prohibited from exploiting

the peculiar capabilities of their host operating system. A brief exposition of a
mechanism to overcome the default sandbox restrictions imposed on Java was
readily available to one or ordinary skill in the art. (See Exhibit 12).

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65.

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As discussed previously, the term applet is used in conjunction with many

different programming languages, and some of those applets are operating
system dependent. There are specific applets for the Windows operating
system, as well as applets for different versions of the Linux operating system.
As these applets are used specifically with one operating system, they are the
essence of operating dependent applets. Apple should be well aware of the
operating system dependent nature of the term applet as it uses applets specific
to its own operating system.
66.

In conclusion, Apple’s requirement that an applet be operating system

independent contradicts the plain language of the ‘711 patent and the file history,
as well as Apple’s own extrinsic evidence. At best it can be said that Java
applets can be operating system independent, but there are instances where that
is not the case. There are also many other applets that are used for specific
operating systems and therefore by definition are not operating system
independent. One skilled in the art would not so limit the term applet as to
require operating system independence.
C.
67.

Opinion

In the Java-free context presented by the ‘711 patent, one of ordinary skill

in the art at the time of the invention would not include the limitation “operating
system-independent” as part of the definition of the term applet.
68.

Based on the above intrinsic and extrinsic evidence, it is my opinion that

one of ordinary skill in the art at the time of the invention would have interpreted
the term applet as “a small application designed to run within another program.”

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